Speedy Trial Act

Illinois Speedy Trial Rights

Under state law, a criminal defendant has both a statutory right to a speedy trial and a constitutional right to a speedy trial. The difference between the two is that the statutory right (which is established by statute, 725 ILCS 5/103-5) specifies exactly how many days the State has to try the charges against a defendant, whereas the constitutional right (established in the Illinois Constitution) is general and applies usually only when the statutory right does not. Also, criminal defendants have a federal constitutional right to a speedy trial under the U.S. Constitution, but this is rarely an issue in state court.

Defendants in Custody

A defendant who is in custody waiting for trial must be brought to trial within 120 days of the date he or she is taken into custody. See 725 ILCS 5/103-5. A defendant in custody does not have to demand a speedy trial in order to start the speedy trial clock. However, a defendant in custody may stop the speedy trial clock if he or she asks the court to regard continuances as motions of the defendant.

Defendants on Bond

A defendant who is released on bond must be brought to trial within 160 days of the date he or she demands trial. See 725 ILCS 5/103-5. A defendant on bond, unlike a defendant in custody, must demand trial in order to start the speedy trial clock. The demand must be in writing, must be clear and unequivocal, and must be served on the State. Once the demand is served, the following day is considered day number one out of 160. A defendant who was previously in custody and then released on bond may add the days in custody to the days on bond, but only by filing a speedy trial demand immediately upon release which references the days in custody.

Defendants in Custody of the Illinois Department of Corrections (IDOC)

The statutory right to a speedy trial for a defendant in custody of the state prison system comes from 730 ILCS 5/3-8-10. This statute, called the Statute on Intrastate Detainers, is a separate statute from the speedy trial statute governing persons incarcerated in county jail. In order to demand a speedy trial from IDOC, the demand must 1) be in writing; 2) cite the Statute on Intrastate Detainers by number; 3) specify the place where the defendant is incarcerated; 4) state the term of incarceration (e.g., the sentence); 5) state the term remaining to be served; 6) cite all pending charges for which the defendant is demanding a speedy trial; 7) specify the county in which those charges are pending; and 8) be served on that county’s State’s Attorney and Circuit Clerk.

Defendants in Custody of Out-of-State Prisons

Defendants who are held in custody of prisons outside the State of Illinois must comply with yet another statute, the Interstate Agreement on Detainers, 730 ILCS 5/3-8-9. Click here to read about demanding a speedy trial when in custody of another county or state with a case pending and warrant.

Constitutional Right to a Speedy Trial

When a defendant claims that he or she has not been placed on trial in compliance with the U.S. or Illinois Constitution, the court will evaluate the speedy trial claim according to four factors: 1) the length of the delay; 2) the reason for the delay; 3) whether the defendant demanded a speedy trial; and 4) any prejudice suffered by the defendant. A good constitutional speedy trial argument will generally involve the fourth factor: prejudice suffered by the defendant. If, for example, the prosecution waited several years to accuse the defendant of a crime, there is a presumption of prejudice because the defendant most likely was not on notice that he or she would be accused of a crime and therefore, did not take steps to prepare a defense (e.g., the defendant did not preserve evidence proving his or her innocence).

Speedy Trial Demands Barring Later Prosecution

A speedy trial demand made when charges are dropped can bar the State from re-charging the defendant for the same offense. Usually, this occurs in Cook County, where charges are dropped by the prosecution according to a motion to strike the case off the call with leave to reinstate (motion State, SOL). When the defendant demands a trial (DDT), the speedy trial clock continues to tick and once either 120 or 160 days have passed, the Cook County State’s Attorney cannot re-file the charges.

In other counties, such as Cook County, the prosecution typically dismisses criminal cases with a motion to nolle prosequi. This motion generally does not stop the speedy trial clock. However, a defendant may be protected by the criminal misdemeanor and felony statute of limitations.

If you are facing charges or a pending criminal case, hire the Right Legal Team. Call us today at: (773) 848-4444